Who Decides Who Owns The Shipwrecks?

An Opinion Piece by Dr. E. Lee Spence

Do States really own the shipwrecks? Or, do the heirs, discoverers or salvors?

Many states claim ownership of shipwrecks on the basis that they are embedded in the seafloor, which they do own. But, I disagree on whether that should be any part of the criteria. I have personally seen 200 years old wrecks sitting entirely exposed on the bottom and I have seen wrecks that have been down just a couple of years that were entirely covered over (i.e. embedded). I have also seen wrecks cover and uncover as the result of storms, so I don’t think being embedded should be considered as an element of ownership.

States also claim ownership of shipwrecks on the basis of the Abandoned Shipwreck Act, which congress passed giving states ownership of all abandoned wrecks within their waters. However, shipwrecks and salvage correctly come under the judicial branch of our government, not under the executive branch, so that law was effectively an attempt by one branch of our government to take away and assume the duties of another. That alone should make the law unconstitutional.

Furthermore, the ships were someone’s private property and therefor belong to the heirs or to the companies that owned or insured them. That means that the federal government’s unilateral declaration that the wrecks were abandoned and declaring them the property of the States was an unconstitutional seizure of private property without due process (due process being done through the courts not congress). Too often we forget that the mere passage of a law by Congress does not make something right or constitutional, it only makes it “legal” and only as long as the law goes unchallenged.

If the wrecks are truly lost and abandoned, then, by long establish federal court decisions, their ownership goes to the finder/salvor. If an owner can be established, then the Federal Court (not Congress) decides who get what and in what form and percentage. The Court may be overworked and may see allowing Congress to get away with this assumption of rights not granted to the executive branch under the Constitution is to their benefit, but it is not to ours. I say we need to force the federal courts to do their job.

Ownership of shipwrecks (in the United States) needs to be decided on a case by case basis, looking at all of the facts involved. In other words, ownership should be decided by due process, and not by an unconstitutional act of Congress.

I am not quite sure what prompted someone to say “Stick to archaeology. Legal analysis really isn’t your strong suit.” I am not even sure what that person saw as a problem with what I wrote.

First of all it was presented as an opinion piece.

Second, I have been researching the legal aspects of shipwrecks and their ownership for almost fifty years.

In 1967, I researched and wrote the first draft of became South Carolina’s law on historic shipwrecks. My company, Shipwrecks Inc., was issued the very first salvage license given out under that law. That law has since been copied by other states. When South Carolina’s law was later amended I was also asked for input.

Some years later I was later asked to give sworn written testimony on shipwrecks and the law during the Congressional hearings on what eventually became the Abandoned Shipwrecks Act (and yes, I had the same objections then as I do now).

I have written several articles on shipwrecks and the law that have been published in nationally distributed publications and journals.

I have been hired as an expert on shipwrecks in two major court cases (federal court) where I specifically testified about questions relating to salvage rights and/or ownership based on discovery.

I have successfully represented myself (pro se) in three different admiralty cases in United States District Court. In two of them, the cases hinged on ownership based the “Law of Finds” and/or the “Law of Salvage.”

Could I have prepared a more “in depth” piece? Yes, I could have (as evidenced by the legal documents that I have previously prepared and filed in the above referenced federal court cases), but this was not meant for filing in court nor for publication in a legal journal, it was meant solely as an opinion piece. It was meant to alert the public as to what I see as the unconstitutional transfer of rights and duties of the Judicial Branch of the federal government to the executive branch of individual States. I think it accomplished that.

Congressman Bennett (FL) was powerful enough to elicit support in his fight against Mel Fisher. With the help of Gov’t backed archaeologists, I might add. and the co-sponsoring by NJ”s own Bradley and Hughes. It never should have happened.

If you have a car accident and leave the car there, the State goes nuts… Tows the car to an impound lot and sends you the bill. The only difference is that in the case of a shipwreck within State waters, there is no need to remove it as it does not present an eyesore.

If the government does not find it legal to seize property in the case of a car accident, then why would it find it legal to do so in the case of a boat accident? Not even vaguely logical… Or just.

Here’s how I handle it as a commercial diver that spends 40+ hours every week submerged… The same way that I would if I was walking through the woods and came across a car wreck or plane wreck that nobody else was aware of… I might inspect out of curiosity or even discover its history and tell the story. I might rummage through it and find things of value and keep them, since they aren’t doing anyone else any good rotting away in a wreck.

Contacting the authorities about it is the last thing on my mind. Why throw a bone into a school of sharks? They regularly demonstrate that they don’t follow logic, or even their own Consitution… Or for that matter, much of the legal system at all. And yes, I know what the laws say. Spence is even vastly more schooled in it than I am.

Sure, if it is in the public’s best interest, then sure, I will notify the authorities and let them duke it out amongst themselves. But in the meantime, while I am he only one that knows about it, I am judge, jury, and executioner regarding the case.

According to the location of the wreck, the age of the wreck, who is interested and why, and of course… The almighty dollar… It may legally belong to the State, the country, another country, the original owner, the insurance company, the owner’s heirs, a nebulous corporation, or even me as the finder. Thr laws are complicated and written by self-serving politicians with greed and not justice as a motivator.

Does that make me a criminal? A pirate? A treasure hunter? Perhaps a historian or archaeologist when I have removed what I want – if anything – and then give the wreck to the State or the University’s arcaeology department? Well… It all depends. The scientists love me when I give them free info. They would hate me if they thought I took things first. The pirates hate me if I give anything away at all… But hate me worse if I don’t give THEM anything.

Here’s the bottom line on all of this… Until there is a scuba police… Until THEY find the wreck before I do… I am the only decision-maker, regardless of what law applies when and where, and whether I choose to disclose info – and enter that ridiculous, convoluted legal system or not.

…And so far, I have chosen to stay as far away from it as possible.

And if you don’t like that, then YOU spend your time and effort and money locating and diving on wrecks. The privilege of these are not exclusive to me.

Like Spence, I have been called many things… Some nomenclature is flattering and some insulting. I hage been called a criminal, a pirate, a privateer, a scientist, and a freelancer. It all depends on the person’s opinion… Which is influenced by whether or not I gave them what they wanted. Yes, that’s right… They think that their greed has an influence on my name.

I am a commercial diver. That is… I dive for the money. I am paid to scrape, cut, weld, fix, apply, wrench, find, locate, inspect, and document. I love to dive, but the reason that I do it is to make a living. So the bottom line on all od my diving is profitability… So that my company survives and I can dive another day. If my primary concern was not profitability, then I would not be able to continue doing what I do.

…Which is why so many others don’t do this for a living -including the State. If all you do is look for wrecks and then give them away, you won’t be doing it for long. Your pumps will wear out, your boats will wear out, and your gear will wear out… And a day will come where you are unable to do another day… Which, incidentally, is where the State and the University are right now, as they call me and ask me to borrow dredging gear.

Judge, jury, and executioner until I share… And that is the bottom line. Yes, I am very legal… But that all depends on who, what, when and where. Y’all go figure it out while I spend my time diving.

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